Mental Health Order: Compulsory Detention and Human Rights

Seán McParland, Law Centre (NI) mentalhealth legal adviser, makes a plea to advisers not to ignore the need to press for reform of the existing mentalhealth legal regime to ensure it is Human Rights compliant.

Introduction

At the time of writing, the Department of Health, Social Services and Public Safety is expected to shortly publish its consultation paper following the Bamford review. The attention of organisations and individuals with a legal interest in the field will inevitably be focused on the proposed new comprehensive legislative framework.

However, it will be some years before any legislation appears on the statute books. In the meantime, the MentalHealth (NI) Order 1986 [the Order] will continue to be the applicable law, together with its associated rules, code of practice and guidance documents.

The Human Rights Act 1998 incorporates into domestic law the European Convention on Human Rights [the Convention]. Many of the Order’s provisions are compliant with the Convention. But there remain a number of potential loopholes. There is scope for advisers to identify cases on human rights grounds which could bring about remedial action.

There have already been successful challenges in recent years, resulting in both statutory reform and binding judicial guidance. For example, the burden of proof was changed by amending legislation in 2004, as a result of a judicial review. It now properly puts the onus on the health trust to justify detention, rather than have the detainee prove s/he should be discharged. Louise Arthurs discusses elsewhere in Frontline (see page 18) a recent High Court case where Judge Gillen’s clear, unequivocal, statements on the provision of care in the community and tribunal reasoning cannot be ignored by the relevant public bodies.

In this article two provisions of the Order are highlighted. They concern matters connected with individuals who are compulsorily detained under Part II of the Order. First, the issue of a detainee’s nearest relative and, secondly, the duty on trusts to automatically refer cases to the MentalHealth Review Tribunal.

Nearest relative

Articles 32, 36 and 37 of the Order deal with the subject of a detained person’s nearest relative, who becomes appointed at the time detention is being considered, and continues in that role to the end of the period. The person is chosen from a prescribed list in the Order in descending order of preference from: ‘spouse; child; parent; brother/ sister’... and so on. The person identified as the nearest relative has extensive powers. These include the right to be informed of matters concerning the detainee, and the ability to order the discharge of the detainee. This order can be barred by the trust. If so, the nearest relative can apply in her/his own right (within 28 days) for a hearing before the MentalHealth Review Tribunal.

The nearest relative is an important person for the detainee to have as a representative. Yet the Order does not allow the detainee to choose who her/his nearest relative should be in the first place. If a nearest relative proves unsuitable, an application can be made to the County Court to have her/him displaced. The Order allows for such an application to be made by an approved social worker; by any relative; or by any other person with whom the patient is (was last) residing. Anyone it seems, apart from the detained person. It is certainly arguable that the law in Northern Ireland as it relates to the nearest relative violates Article 8 of the Convention, which affords the detained person the ‘right to respect for private and family life’. It is likely that in many cases there will be little controversy, but one can anticipate some broken down relationships where there is understandable antipathy by the detainee towards the appointed nearest relative. In this circumstance, it is an unjustified interference with Article 8 for legislation to allow the latter to have access to personal sensitive information of a medical nature.

It may be the Order was drafted in this way because the government of the day was concerned that if a person were able to nominate her/his nearest relative, during what would probably be a time of crisis, s/he might choose someone with whom s/he had little connection, or someone who would not act in her/his best interests, or who would collude to use her/his powers to get the person out of hospital. Such attitudes, which result in control being taken away from the individual, do not sit easily with present day concepts of autonomy and choice in the health care system. Furthermore, the Order itself has checks and balances in place through the above mentioned barring and displacement provisions.

This issue has already been addressed to a degree in England and Wales. The MentalHealth Act 1983 broadly mirrors our own Order. That jurisdiction was forced to reform its Act to make it compliant with the Convention following the European Court case of JT v UK [2000] 1 FLR 909 and the domestic Court case of R (on the application of M) v Secretary of State for Health [2003] 3 ALLER 672. It could, nevertheless, be said that from a rights based policy perspective, Parliament did not go far enough. Section 30 of the MentalHealth Act 1983, (as amended by the MentalHealth Act 2007), does now allow detained persons to apply to the County Court themselves to displace a nearest relative. However, the detained person still does not have the ability, as of right, to have unfettered choice as to who performs the role.

Duty on trusts to automatically refer cases to the tribunal

The trust in whose area a psychiatric hospital is located is the detaining authority. At the outset, it is worth remembering the possible schedule of maximum periods of detention available to the trusts under the Order:

fourteen days: for assessment (Art. 9), then;

six months: for medical treatment, incorporating the fourteen day assessment (Art. 12), then another;

six months: for medical treatment (Art. 13), then another;

twelve months: for medical treatment (Art. 13);

and renewed at twelve month periods indefinitely thereafter (Art.13).

Of course, at any stage during the above periods it is open to the trust to take the decision to discharge the person from detention. If this does not happen, the detainee has recourse to the MentalHealth Review Tribunal, which is a judicial body set up by the Order. It provides an independent oversight mechanism to review the lawfulness of detention in hospital for treatment. A detained person is entitled to apply for a tribunal hearing once during the first six months of detention, once during the second six months, and once for every twelve month period thereafter. In theory, a person could apply for three hearings during the first two years.

However, if a detainee does not take steps to apply for a tribunal, then as a protection measure the Order places a duty upon the trust to refer the matter to the tribunal. A concern is with the time frame that is allowed to elapse before the trust is compelled to make the referral. Art. 73(1) of the Order specifies a period of two years from the date the detention began, and every two years thereafter (a one year period for children under sixteen).

It could be said that this is too long a period for a person to be deprived of her/his liberty without independent judicial scrutiny. Arguably, it contravenes the following Convention Articles:

Article 5: ‘Right to liberty and security’, specifically Art. 5(4), which stipulates that detention shall be decided speedily by a court;

Article 6 : ‘Right to a fair trial’, specifically Art. 6(1) which calls for a fair hearing within a reasonable time by an independent and impartial tribunal.

It may be countered that the Order already provides access to tribunals. However, it is a patient led procedure and not all detainees will have the initiative to activate it. Individuals who are likely to be most affected are those subject to long term detentions who lack the appropriate decision making capacity.

We can look to a neighbouring jurisdiction for an example of good practice. Compulsory detention is governed in the Republic of Ireland by the MentalHealth Act (2001). A progressive element of its legislation is that at the point of admission for assessment (21 days), and at the start of each subsequent renewal period (three months, six months and every twelve months thereafter), a case is automatically referred to an independent tribunal.

This issue is worthy of further exploration. A remedy can be put in place with relative ease as Art. 73(3) of our Order gives the Department power to vary the length of the period for automatic referral.

Testing the law

Law Centre (NI) is of the view that the above two issues are capable of successful reform, and we would be hopeful that suitable test cases can be identified. If anyone wishes to discuss matters arising from this article, or indeed any aspect of mentalhealth law, then please give our mentalhealth legal advisers a call on 028 9024 4401 or 028 7126 2433, 9.30am to 1pm.